The Classical Doctrine of status and the Rhetorical

Theory of Argumentation

Antoine Braet

In the modern theory of argumentation it is not uncommon to

draw a distinction between a rhetorical and a dialectical ap-
proach. The distinguishing features of the rhetorical approach are
then considered to be its monological conception of argumenta-
tion and the attention it pays to the actual effectiveness of the
argumentation on a passive audience. A dialectical approach is
one in which argumentation is regarded as dialogical and the
central issue is the normative acceptability of the argumentation
to a critically reacting audience.'
These two approaches take their names from the assumption
that they are continuations of classical rhetoric and classical dia-
lectic, respectively. Indeed, it may truly be said of the best
known of modern theories of argumentation, that of Perelman
and Olbrechts-Tyteca, that it follows on from classical rhetoric. It
may also be asserted that this theory contains a monological view
of argumentation and concentrates on effectiveness with a passive
audience. But the fact that Perelman and Olbrechts-Tyteca build
on classical rhetoric need not imply that these features may also
be attributed to the classical precursor. In this article I shall argue
that this is at the very least a partially incorrect interpretation of
the classical rhetorical theory of argumentation: this theory is not
monological, and it is not interested purely in effectiveness.
One is led to this rectification if one turns one's attention to the
classical doctrine of status, which ever since Hermagoras has been
the cornerstone of the classical rhetorical theory of argumenta-
tion. Although the notion of status (or stasis) predates Hermago-
ras, and although almost all the elements of the doctrine can be
identified both in the Attic orators and in the older rhetorical
tracts (including those of Aristotle), it is to him that we owe the
development of the doctrine of status as a closed procedure of
Compared with Aristotle's still fairly unsystematic doc-

Philosophy and Rhetoric, Vol. 20, No. 2, 1987. Published by The Pennsylvania
State University Press, University Park and London. Editorial Office: Depart-
ment of Philosophy, Emory University, Atlanta, GA 30322.

79
80 ANTOINE BRAET

trine of inventio this was a considerable advance. As a result, the

doctrine of status continued to dominate the later Greek and
Roman doctrines of inventio and hence the entire rhetorical sys-
tem. Later rhetoricians did try to reap glory for themselves by
inventing all sorts of variants on Hermagoras's system. They met
with little success, however, and Hermagoras's doctrine has con-
tinued to set the tone.^ Indeed, from a modern j>oint of view this
is hardly surprising, since it is the version that most closely ap-
proaches the adequate logical form. In what follows I shall con-
fine myself to this variant, which, for the sake of simplicity, I
shall call ''the classical doctrine of status," despite, therefore, its
strict historical inaccuracy.
Let us now attempt to answer two questions: (1) What exactly
is entailed in the concept of status, seen not only from a historical
but also from a systematic angle? (2) What features characterize
a rhetorical theory of argumentation with a doctrine of status at
its core?
I base these attempts on a considerable body of prior philologi-
cal work. The writings of Hermagoras himself are no longer ex-
tant, of course, so that his doctrine of status has had to be recon-
structed from subsequent sources. Fortunately the doctrine was
so canonical that it has been possible to arrive at a virtually
complete and reliable reconstruction of the main points. Contri-
butions to the reconstruction are scattered over innumerable pub-
lications, mainly by German classical scholars. In 1958 Matthes
summarized these contributions in an exceptionally thorough
synthesis,"* since when little substantial work has been added, in
which I include Barwick's scarcely convincing new attempt at
reconstruction.' For the historical core of Hermagoras's work it is
safe to rely on Matthes's synthesis and subsequent source book.''
The debatable details to which this does not apply may be disre-
garded here.^
At first sight one might expect the answer to the first question
above to be found immediately in Matthes, and to a certain ex-
tent this is indeed the case. However, even his analysis of the
concept of status has its shortcomings, particularly from the syste-
matic point of view. Although he already makes shrewd use of
modem distinctions in criminal law, in this respect his interpreta-
tion still calls for a degree of amplification. In particular, and
quite understandably, his largely historical reconstruction tends
to overlook both the relationship between status and burden of
 STATUS AND THE THEORY OF ARGUMENTATION 81

proof on the one hand and the importance of status to the judge
on the other. To be fair, though, it must be said that, unlike
myself, Matthes was not able to draw on the thoughts of the legal
historian Horak, who in 1972 devoted a most illuminating study
to the correspondences between the classical doctrine of status
and the modem schema of legal theory.*

1. The concept of status

With all the contradictions in the classical sources and all the
disagreement as to details among modem philologists, one thing
is clear: in Hermagoras the concept of status (stasis) was linked
with the so-called krinomenon schema, the purpose of which is to
steer the inventio of the prosecutor and the defendant in legal
proceedings. During the preparation of their speeches both
parties imagine that they are in the courtroom. Following the
schema, they anticipate their opponent's arguments and decide
on their reaction to them. In this way they ultimately deduce the
krinomenon, i.e., the crucial question that the judge must
answer. They then, with the aid of the topics, look specifically for
the arguments to back up their position with regard to the
krinomenon.^
Concretized by reference to the classic example of the trial of
Orestes, in the version'"* in Cicero's De inventione, book 2, the
schema looks like this:

PROSECUTOR DEFENDANT
1 intentio (kataphasis) (indictment) 2 depulsio {apophasis) (defence)
'you killed your mother' ^ ^ 'I killed her lawfully'

3 quaesdo {zetima) (question)

'was his killing her lawful?'

5 infirmatio rationis (rebuttal) 4 ratio (synechon)' (justification)

'killing without trial is wrong' ;she had killed my father'

d ludicaiio (krinomenon) (point of judgment)

'was he justified by the killing of his father?'

JUDGE

'The place of this term, and of the term aition, is unclear.

82 ANTOINE BRAET

Now we can be sure that the Hermagorean concept of status

(stasis) refers to the first three elements of the schema. What is
unclear, however, is how Hermagoras linked the concept to those
elements. The sources contradict one another on this point.
Sometimes it is equated with the quaestio (the zetema), some-
times with the conflict of the intentio (kataphasis) and depulsio
(apophasis), or even with the defense on its own." It is in Quin-
tilian, who incidentally tends to follow not Hermagoras himself
but the later Theodore of Gadara, that we find the most logical
interpretation: that the status is the genus quaestionis, the sort of
questioning to which a particular concrete quaestio from the
schema belongs.'^ In the modem philological literature these
three interpretations may be found, for example, in Barwick,
Adamietz, and Lausberg, respectively."
From my point of view this terminological problem is of minor
significance. As a theorist of argumentation I am interested not
so much in the question of which of the conflicting definitions of
status in the classical sources is to be attributed to Hermagoras,
as in the question of the part of the proceedings for which the
concept evidently stands. This can be identified by analyzing the
argumentative situations to which the krinomenon schema refers.
First and foremost among these is the situation of the criminal
trial, characterized by the three argumentative roles of prosecu-
tor, defendant, and judge. By linking the concept of status to
these three roles it is possible to arrive at a systematic analysis,
which is one of the prerequisites for an adequate description or
definition of a rhetorical theory of argumentation with a doctrine
of status at its core. In the case of the analysis from the point of
view of the judge, in particular, I thus go further than a historical
reconstruction of Hermagoras's doctrine of status, in which, of
course, everything is seen from the angle of the orators.
Let us first have a look at the role of the defendant. It is this
role that sheds the clearest light on the concept of status, and it is
this role that receives the most attention in the classical accounts.
In his Hermagorean doctrine of status for beginners Quintilian
writes that there are four ways open to the defendant:'^

Far the strongest method of self-defence is, if possible, to deny

the charge. The second best is when it is possible to reply that the
particular act with which you are charged was never committed.
The third and most honourable is to maintain that the act was
 STATUS AND THE THEORY OF ARGUMENTATION 83

justifiable. If none of these lines of defence are feasible, there

remains the last and only hojje of safety: if it is impossible either to
deny the charge or justify the act, we must evade the charge with
the aid of some point of law, making it appear that the action has
been brought against us illegally.

In terms of the krinomenon schema, these are the four possible

ways of giving the defense some substance. To these correspond
the four status:
1. the defense of denial leads to the first status, which Hermago-
ras calls stochasmos {coniectura);
2. the defense of redefinition (e.g., not murder but man-
slaughter) leads to the second status, which Hermagoras calls
horos (deftnitio);
3. the defense of justification or exoneration leads to the third
status, called poiotes (qualitas);
4. the defense of procedural objection leads to the fourth status,
which Hermagoras called metalepsis (translatio).^^
These four status have some conspicuous logical and psychologi-
cal features.
Logically speaking they are exhaustive: they cover every con-
ceivable way in which a defendant can react. In other words, the
element of defense in the schema can be filled with oniy one of
these four kinds of statement. Second, it is enough for the defen-
dant to win the judge over to his side for one of the four status.
Third, the four status, bar the last, are ordered presuppositionally.
That is, the choice of status 2, for example, presupposes the admis-
sion of status 1 and the choice of status 3 presupposes the admis-
sion (at least to some extent) of status 1 and 2. The fourth
defense—^well defined, in particular, by the late Greek rhetorician
Hermogenes"—does not presuppose admission of the previous
points, since looked at logically this is a matter of a preliminary
investigation of the technical correctness of the proceedings, the
result for the three other status being placed between brackets.
In the classical sources it is the third logical feature, in par-
ticular, that is emphasized and given a psychological interpreta-
tion. The presuppositional ranking is seen as the order of a
retreat from stronger to weaker lines of defense. In this context
it seems curious that the technical defense, which is nowadays in
principle so powerful, should come last here. Evidently the an-
cients saw it as a formal refuge with which those who resorted
84 ANTOINE BRAET

to it heaped upon themselves the suspicion that they had no

material defense.'*
All in all the modem theorist of argumentation is struck by the
fact that the classics tend to stress the psychological, strategically
persuasive aspects of status much more than its logical aspects. In
a modem analysis one would place the second logical feature at
the forefront, and with it the link between the doctrine of status
and the division of the burden of proof in criminal trials. Before I
examine this more closely, however, let us tum to the task of the
prosecutor.
The classical sources, looked at systematically, fail to treat this
task adequately. The best account is again to be found in Quintil-
ian. Following on from his description of the status as four lines
of defense, quoted above, he writes: "The accuser likewise has
four things which he must keep in mind: he must prove that
something was done, that a particular act was done, that it was
wrongly done, and that he brings his charge according to law.""
This looks as if it is susceptible of more than one interpretation.
Perhaps we may understand it to mean that Quintilian saw the
status as four points in the burden of proof, aU of which have to
be proved by the prosecutor. In that case he would have realized
that the four status correspond to the four necessary main argu-
ments that a prosecutor has to advance for his conclusion, often
implicit, that the accused must be punished. But if we look at the
way Quintilian criticizes the krinomenon schema we begin to
have doubts, after all, about whether his appreciation of the task
of the prosecutor is as clear as it might be. He, too, appiears to
have missed the fact that the schema is biased towards the defen-
dant and is actually suitable only for determining his position.^"
As with the discussion of the role of the defender, I shall for
the moment postpone a closer analysis of the burden of proof. It
will be more useful first to examine the role of the judge.
Now, the classical sources are silent on the subject of the role
played by the judge. This is understandable, since the doctrine
of status is part of the ancient rhetorical system, which, as we all
know, contains only guidelines for the production of oratory by
the orators, and no guidelines for its reception by the audience.
Even where there is a direct reference within the system to
some activity on the part of the audience, as there is in the term
krinomenon ("that which—^by the audience—is judged") there is
no hint of any advice. Thus we are told how, as orators, we are
 STATUS AND THE THEORY OF ARGUMENTATION 85

to look for the krinomenon, and how we must then go on to

direct our entire oratory towards it,^' but there is no treatment,
or no explicit treatment, of how the audience can reach a right
judgment. The audience's role is indicated only in terms of the
rhetorical effects that the speaker intends to achieve in that
audience. Ultimately, this comes down to the peithinlpersuadere,
convincing and persuading. That is, persuading the audience to
make a favorable decision on the basis of the krinomenon se-
lected as opportunistically as piossible.^
Despite the fact that Hermagoras consistently presents his doc-
trine of status from the angle of the persuasive designs of the
orator (as we have seen in the case of the defendant), it is possi-
ble, and, for a proper insight into the concept of status, neces-
sary, to explicitize the implicit instructions contained in the doc-
trine of status for the judging audience. This analysis will reveal
that the doctrine of status can be used in two ways: on the one
hand, to further one's own interests as effectively as possible, and
on the other hand to reach an unbiased judgment as rationally as
possible. The first of these functions is that of classical rhetoric;
the second was first noted by the jurist Meyer, who in 1951
asserted that the notion of status is a tool not only of the advocate
but also of the judge." In 1972 this was elaborated systematically
by the legal historian Horak.•^''
Horak observes that the status, while unquestionably advoca-
tory in character, must on closer inspection be viewed by no
means exclusively from the angle of the advocate and his defense
task. Each status ultimately represents "a way of looking at a
problem which is general, not relevant only to the advocate, and
can equally well serve the court, or even the legal scientist, in
judging a criminal act."'^
Horak reaches this conclusion at the end of the discussion in
which he demonstrates that the substance and structure of the status
correspond to "the so-called analytical structure of the crime con-
cept (or rather, because it is broader: of the concept of the criminal
act)," as developed in the last century by Franz von Liszt and Ernst
Beling.'^*' In this so-called legal theoretical schema a crime {Verbre-
chen or Straftat) is broken down into (1) a factual (tatbestandsmas-
sige), (2) an unlawful (rechtswidrige), and (3) a culpable (schuld-
hafte) human act.^' This corresponds broadly to (1) definitio, (2) all
substatus of qualitas except ioxpurgatio and deprecatio, and (3>)pur-
gatio (deprecatio falls outside the scope of the schema).^
86 ANTOINE BRAET

Horak sees the crucial parallelism between the notion of status

and the legal theoretical schema as lying in the systematic char-
acter of the two doctrines.^ Reference to either system makes it
possible to determine exhaustively whether one is dealing with a
punishable act. For this purpose a questionnaire is used in which
each successive question becomes relevant only if the previous
one has been answered with a "yes."^ This applies not only to
the main status but also to the very important substatus of
qualUas,^^ which correspond extraordinarily closely to the mod-
em grounds for exemption from punishment, or exonerating cir-
cumstances, of many legal systems.^'^
It is reasonable to say that with their legal theoretical schema
the criminal law dogmatists Von Liszt and Beling reinvented the
notion of status. Only in their case the "doctrine of status" is not
a practical instrument for the conduct pf legal argumentation but
a theoretical construction for defining the notion of Verbrechen.
With Horak we may say that the difference is not one of princi-
ple: the points on which the legal scientist assesses the case and
those on which the advocate and the court do so are identical. It
need therefore occasion no surprise that the legal theoretical
schema soon returned "to its origins," i.e., to the courtroom.
This happened when it began to function as a guideline for those
articles of the law of criminal procedure that regulate the argu-
mentative process in criminal actions. In criminal procedure in
the Netherlands, in particular, this has led to articles which are
unwitting but perfect copies of the classical doctrine of status,
albeit that the status are regarded in them from the point of view
of the judge trying the case.''
The articles in question are articles 348 and 350 of the Code of
Criminal Procedure (Wetboek van Strafvordering). These indi-
cate the points on which the judge in a criminal case must form
his judgment at the end of the trial. I shall paraphase the articles
in the way usual in Dutch legal literature, giving the correspond-
ing status in each instance. For the sake of brevity I shall assume
that the equivalents require no further elucidation.'*

A. The formal or preliminary questions of article 348Xbroadly =

Translatio)
1. Is the writ of summons valid?
2. Am I, the judge, competent?
3. Is the public prosecutor admissible?
 STATUS Am:) THE THEORY OF ARGUMENTATION 87

4. Are there grounds for adjouming the prosecution?

B. The material or main questions of article 350
1. Is the fact proved? (Question of Proof) (= Coniectura)
(If so:)
2. Is the fact punishable? (Question of Qualification: is the
proven fact covered by a provision of the criminal law?)
(= Definitio)
(If so:)
3. Is the offender punishable? (Question of possible exoner-
ating circumstances, such as force majeure) (= Qualitas)
(If so:)
4. What sanction should be imposed?

From this symmetry between Netherlands criminal procedure

and the classical doctrine of status it follows that to the criminal
judge the status have the significance offixedpoints of judgment.
To put it another way: the status constitute a series of points
which have to be established to the judge's satisfaction, which
therefore "have to be proved," before he feels obliged to impose
a sanction. This makes it clear that the doctrine of status is a
doctrine of the burden of proof. The question is, however, what
sort of doctrine of the burden of proof is it?
From what I have said so far there follows no more than that
the status are fixed points which "have to be proved." Now we
know what "has to be proved" in a criminal trial, hut not who
must "do the proving." The question of the division of the
burden of proof over the participants in a criminal action is in
other words still open. True, I have, in the foregoing, suggested
that the prosecutor must provide proof for all status, and that the
defendant can content himself with convincing the judge on only
one status, but this needs to be amplified and restated more
precisely. Only then will it be clear what the status entail for the
prosecutor and the defendant in terms of the burden of proof.
The division of the burden of proof in a criminal action is
determined by what is termed the form of the process. This varies
according to period and country. In ancient times, for example,
there was no presumptio innocentiae, and today there is a differ-
ence between the mixed inquisitarial-accusatory process in the
Netherlands and the more purely acpusatory proceedings of An-
glo-American law. AU these differences are accompanied by var-
iations in the division gjf ^he ^urd^i of proof and hence of the
88 ANTOINE BRAET

meaning of the stattis for the parties involved. I shall not here go
into the intricacies of the process in the Netherlands, but will
confine myself to a comparison of the modem, Anglo-American
accusatory criminal trial with presumption of innocence and the
classical trial, also accusatory but without the presumption of
innocence.
Stated succinctly, in the modem variant the status have the
following meanings for the parties involved:
—the prosecutor must, if he wishes to obtain a sanction, himself
at the same time raise the status coniecturalis and the status defi-
nitivus in the indictment, and he must then produce convincing
arguments for them; in the case of the status qualitatis and trans-
lationis he can begin by assuming that there are no exonerating
circumstances, and that the procedure is correct, until the defen-
dant argues to the contrary, but then he must convincingly refute
that argumentation; ultimately, all status hold a point on which
the burden of proof is on him;
—the defendant must, if he wishes to avoid a sanction, either,
according to choice, dispute the thesis/argumentation adduced for
the status coniecturalis or status definitivus, or himself advance
the status qualitatis or status trans(ationis, with argumentation: the
burden of proof does not rest on him for any status, however; it is
sufficient if for at least one status he can raise enough doubt
about the prosecutor's standpoint (since of course the presump-
tion of innocence means in dubio pro reo: in doubt, for the
accused);
—the judge must, before he proceeds to the imposition of a
sanction, establish in the first place whether the prosecutor—
quite aside from a reaction from the defendant—has convinced
him in all status (for which convincing argumentation is necessary
for coniectura and definitio, after which it is assumed that there
are no exonerating circumstances, just as it was assumed that the
procedure was correct), and in the second place whether he has
convincingly removed any doubt raised by the defendant on any
status: to the judge, then, the status contain the points of judg-
ment whereby the prosecutor must ultimately be discharged of
the onus of proof that is upon him.
The only difference in the ancient variant is that the defendant,
because of the absence of the presumption of innocence, cannot
be satisfied merely by arousing doubt on only one status: as soon
as the prosecutor produces a convincing argument on any one
 STATUS AND THE THEORY OF ARGUMENTATION 89

Status, the defendant himself has to bear a burden of proof. In

the ancient variant, all status collectively are points of the burden
of proof on the prosecutor and each status individually is a possi-
ble point of the burden of proof on the defendant.'^
Now that, I hope, the matter to which the doctrine of status
refers has been sufficiently clarified, let us retum for a moment
to the question of terminology.
In the philological literature it is a matter of dispute, as I have
already observed, whether Hermagoras uses the term status for
the conflict of indictment and defense or for the question, or sort
of question, that arises from that conflict. More important than
the solution of this problem is the observation that however he
used it, Hermagoras allied the term status too narrowly with the
reaction of the defendant. In fact it is necessary, by analogy with
the distinction in the doctrine of stock issues,^ to distinguish
between potential and actual status. The potential stattds are the
material and formal prerequisites for the imposition of a sanction
together, i.e., all four status. The actual status is (or are) deter-
mined by the defendant if he can make one or more of the status
an actual status. Up to a point this actual status may be termed
"the" status, as long as it is not forgotten that all four status are
points on which the judge has to form an opinion, bearing in
mind that in the case of status abandoned by the defendant only
the argumentation put forward by the prosecutor need be as-
sessed. The ancients' appreciation of this was defective, witness
their linking of the krinomenon to the actual status. (As already
observed, the krinomenon schema, and hence the doctrine of
status, is biased towards the defendant anyway.)
A discussion of the notion of status cannot be complete without
an answer to the question of what is the best translation of the
Greek stasis and the Latin status. Literally, both words mean
"status," "state," or "standing," or, to be preferred because of
the strategic connotation, "position" or "standpoint." But these
translations fail to tell us enough. Starting from the matter to
which the term refers it is possible to arrive at more satisfactory
definitions. Depending on the point of view one chooses, a vari-
ety of possibilities present themselves. By way of recapitulation I
will list the following:
—starting point (of the inventio: the seeking of argumentation for
the standpoint);
—main issue (of the argumentative text: the status correspond to
90 ANTOINE BRAET

the main arguments to the central thesis "a sanction must [not]
be imposed");
—point of questioning, judgment, or decision (for the judge: the
status are fixed sub-issues to the main issue "must a sanction be
imposed?");
—condition of imposition of sanction (the status, seen in terms of
their content, are each a necessary and collectively a sufficient
condition for the imposition of a sanction).

2. Rhetorical argumentation theory

So what shape has a rhetorical theory of argumentation con-
stmcted on the foundations laid down by a doctrine of status!
Certainly not that of the New Rhetoric!
In the first place such a theory is not monological. A theory of
argumentation that is based on a doctrine of status does not start
from a single, isolated orator pursuing persuasive objectives with
a passive audience. Rather, such a theory should be described is
dialogical, since every argument in this approach is seen as a
contribution to a debate consisting of a minimum of a single
argument for and a single argument against, and consisting at the
most of an infinite succession of contributions for and against.
Yet dialogical pure and simple it is not: in contrast to an ordinary
dialogue, the discussants are attempting to convince not one
another, but a third, adjudicating party. Incidentally, this does
not necessarily mean that three persons or groups actually have
to be physically present. There are three roles, those of propo-
nent, opponent, and adjudicator, each of which can be "em-
bodied" in a variety of ways. Two persons, even only one, may
be enough.
Second, such a theory is not purely descriptive in the sense of
being a description of effective modes of argumentation. True,
classical rhetoricians, and Hermagoras was no exception, were
interested solely in the effectiveness of the argumentation: but
the foregoing discussion of the doctrine of status will, I trust,
have demonstrated that even the classical rhetorical doctrine of
argumentation is founded on peripheral conditions for arriving at
a rational judgment. A theory of argumentation which has a
doctrine of status at its core is thus sensible of both the effective-
ness and the rationality of the argumentation. Thus such a theory
 STATUS AND THE THEORY OF ARGUMENTATION 91

is normative as well as descriptive: it lays down norms within

which the discussants can play their role to the greatest possible
effect, and to which the adjudicators must adhere when forming
their judgment.
These two properties are interlinked, and may be brought
under a common denominator as follows: a modem rhetorical
theory of argumentation with a doctrine of status as its basis has
a critical discussion as its object. Because critical and normative
aspects are as a mle not immediately associated with a rhetori-
cal approach, I shall go into this in a little more detail.
The normative aspect lies in the force which the exhaustive
system of dispute and judgment points, and the doctrine of the
burden of proof that is in one way or another connected with it,
has for each of the three roles. Naturally, this aspect is at its most
conspicuous in the case of the critical adjudicator. He resembles
in no respect the auditor of a speech who passively allows himself
to be carried along by a clever orator and his own feelings. On
the contrary, he will stand back and test the debate actively and
systematically against universally accepted yardsticks inherent to
the matter under discussion. Because the using of these yard-
sticks, even though they are themselves objectively given, will
always to a certain extent introduce an element of subjectivity,
there is still room for the attuning, so highly regarded by rhetori-
cians, of the argumentation to the personal idiosyncrasy of the
adjudicator. A more characteristic possibility of strategic argu-
mentation in a rhetorical debate occurs not, however, despite the
fixed norms but because of them. I refer to the defendant's op-
tion, so strongly emphasized in the classical sources, of making a
strategic choice from the status. In modem terminology: regula-
tion of the burden of proof not only sets limits but also offers
opportunities which one must know how to use.
If we now compare this picture of a tmly classical rhetorical
theory of argumentation with modem theories of argumentation,
we find that there is a greater correspondence to dialectical the-
ories such as those of Barth and Krabbe and Van Eemeren and
Grootendorst than to Perelman and Olbrechts-Tyteca. For the
fact is that both these modem dialecticians and a rhetorical the-
ory based on a doctrine of status see argumentation as "a critical
discussion: a discussion between a protagonist and an antagonist
of a particular standpoint in respect of an expressed opinion, the
92 ANTOINE BRAET

purpose of the discussion being to establish whether the protago-

nist's standpoint is defensible against the critical reaction of the
antagonist."''
Speech Department
University of Leyden

Notes
1. Joseph W. Wenzel, "Jurgen Habermas and the Dialectical Perspective on
Argumentation," Joumal ofthe American Forensic Association 16 (1979): 84-85;
Else M. Barth et al. (eds.). Argumentation. Approaches to Theory Formation.
Containing the Contributions to the Groningen Conference on the Theory of Argu-
mentation, October 1978 (Amsterdam: John Benjamins, 1982), VIII; Frans van
Eemeren and Rob Grootendorst, Speech Acts in Argumentative Discussions. A
Theoretical Model for the Analysis of Discussions Directed Towards Solving Con-
flicts of Opinion (Dordrecht: Cinnaminson; Foris, 1984), 13 and 17.
2. Cf. Joachim Adamietz, M. F. QuintUiani Institutionis Oratoriae Liber III,
mit einem Kommentar herausgegeben (Munchen: Wilhelm Fink, 1966), 76, ad
111,1,16.
3. This emerges from, among other things, the place accorded the Hermago-
ras variant in the referential Institutio Oratoria of Quintilian.
4. Dieter Matthes, "Hermagoras von Temnos 1904-1955," Lustrum 3 (1958):
58-214.
5. Karl Barwick, "Zur Rekonstruktion der Rhetorik des Hermagoras von
Temnos," Philologus 109 (1965): 186-218.
6. Dieter Matthes, Hermagoras Temnitae testimonia et fragmenta, adiunctis el
Hermagorae cuiusdam discipuli Theodori Gadari et Hermagorae Minoris fragmen-
tis (Leipzig: B.G. Teubner, 1962).
7. For these details see Antoine Braet, De klassieke statusleer in modern
perspectief; een historisch-systematische bijdrage tot de argumentatieleer (Granin-
gen; Wolters-Noordhoff, 1984), 4-6 and 36-39. (The present article contains one
of the main ideas in this dissertation in Dutch.)
8. Franz Horak, "Die rhetorische Statuslehre uad dsr moderne Aufbau des
Verbrechensbegriffs," in Franz Horak jna W. Wftlj«eus (Hrsg.), Festgabe fiir
Arnold Herdlitczka (Munchen/Salzburg, 19?2>. \2i-42.
9. Cf. Adamietz, 207-8.
10. For an analysis of the various versions of the schema, see Braet, 71-81.
11. See De rhetorica 11 and 12 (Matthes Testimonia et fragmenta 18e and 18c):
De inventione 1, 10 (Matthes fr. 13a); and De inventione 1, 13 (Matthes fr. 33a),
respectively.
12. Quintilian 3,6,5.
13. Karl Barwick, "Zur Erklarung und Geschichte der Staseislehre des Her-
magoras von Temnos," Philologus 108 (1964): 82-83; Adamietz, 109 and 114-15;
Heiniich Lausberg, Handbuch der literarischen Rhetorik; eine Grundlegung der
Literaturwissenschaft (Munchen: Max Hueber, 1973), 64.
14. For the scope of the doctrine of status, see Braet, 169-73 and 193-98.
15. Quintilian 3,6,83, trans. H. E. Butler, The Institutio Oratoria of Quintilian, 4
voJs. (London: W. Heinemann/Cambridge, Mass.: Harvard University Press, 1920-
22).
16. See Matthes, Lustrum 133-66 and Braet 53-54.
17. Hugo Rabe, Hermogenis opera (Stuttgart: B.G. Teubner, 1969), 42-43.
18. George Kennedy, The Art of Persuasion in Greece (London: Routiedge &
Kegan Paul, 1963), 308.
19. Quintilian 3,6,85 (trans. H. E. Butler).
 STA TUS AND THE THEORY OF ARGUMENTATION 93

10. Braet, 55 and 71-8L

21. De inventione 2, 52, Ad Herennium 1, 26 and 2, 2, OuintiSian 3,6,21
(Matthes fr. 10a).
22. Jean Cousin, Etudes sur Quintitien. Tome L Contribution a la recherche des
sources de t'lnstitufiffn oratoire (Paris: Boivin, 1935). 178.
23. Ernst Mejer, "Die Quaestionen der Rhetorik und die Anfange juristischer
Methodenlehre." Zeitschrift der Savigny-Stiftimg fiir Rechlsgeschichte, Roman.
Abt. 68 (1951): 30-73.
24. See n. 8, above.
25. Horak, 139.
26. Ibid., 123.
27. Ibid., 126-27.
28. Ibid., 129-36.
29. Ibid., 139.
30. Ibid., 125-26.
31. Ibid., 140.
32. See n. 27, above.
33. Braet, 173-77.
34. Ibid.
35. Ibid., 191-92.
36. Ibid., ch. 6, contains a comparison of the theory of stock issues in the
American academic debate and the classical doctrine of status.
37. Van Eemeren and Grootendorst, 17.